Miley and Caputo)
[Introduced February 24, 2009; referred to the
Committee on Senior Citizen Issues then the Judiciary.]

A BILL to amend and reenact §61-2-29 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto
four new sections, designated §61-2-29a, §61-2-29b, §61-2-29c
and §61-2-29d, all relating to protecting incapacitated
persons and the elderly; defining terms; criminal penalties;
and providing enhanced periods of incarceration for the
offense of abuse or neglect of incapacitated adults or elder
persons which result in the death of such persons.

Be it enacted by the Legislature of West Virginia:
That §61-2-29 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto four new sections, designated §61-2-29a, §61-2-29b,
§61-2-29c and §61-2-29d, all to read as follows:ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-29. Abuse or neglect of incapacitated adult; abuse or
neglect of elder person; misappropriation or misuse of assets or funds of elder person; misappropriation
or misuse of assets or funds of elder person through
deception, intimidation, coercion, bodily injury or
threats of bodily injury; penalties.

(a) The following words when used in this section have the
meaning ascribed, unless the context clearly indicates otherwise:
(1) "Abuse" means the infliction or threat to inflict physical
pain or injury on an incapacitated adult or elder person;
(2) "Caregiver" means an adult who has or shares actual
physical possession or care of an incapacitated adult or elder
person on a full-time or temporary basis, regardless of whether
such person has been designated as a guardian of such adult by any
contract, agreement or legal proceeding. Caregiver includes health
care providers, family members and any person who otherwise
voluntarily accepts a supervisory role towards an incapacitated
adult or elder person;
(3) "Neglect" means: (i) The failure to provide the
necessities of life to an incapacitated adult or elder person; or
(ii) the unlawful expenditure or willful dissipation of the funds
or other assets owned or paid to or for the benefit of an
incapacitated adult or elder person;
(4) "Incapacitated adult" means any person who by reason of
physical, mental or other infirmity is unable to physically carry
on the daily activities of life necessary to sustaining life and reasonable health;
(5) "Elder" means a person age sixty-five years or older;
(6) "Bodily injury" means substantial physical pain, illness
or any impairment of physical condition; and
(7) "Custodian" means a person over the age of eighteen years
who has or shares actual physical possession of care and custody of
an elder person on a full-time or temporary basis, regardless of
whether the person has been granted custody of the elder person by
any contract, agreement or legal proceeding.
(b) AnyA person, caregiver, guardian or custodian who
neglects an incapacitated adult or elder person, or who knowingly
permits another person to neglect saidthe adult, is guilty of a
misdemeanorfelony and, upon conviction thereof, shall be fined not
less than $500 nor more than fifteen hundred$5,000, or imprisoned
in the county or regional jaila state correctional facility for
not less than ninety days one yearsyear nor more than one year
five years, or both fined and imprisoned.
(c) AnyA person, caregiver, guardian or custodian who
intentionally abuses or neglects an incapacitated adult or elder
person is guilty of a felony and, upon conviction thereof, shall,
in the discretion of the court, be confined in a state correctional
facility for not less than two nor more than ten years.
(d) If any person,A caregiver, guardian or custodian of an
elder person or incapacitated adult, who willfully misappropriates, or misuses the funds or assets of an incapacitated adult or elder
person for the person's, caregiver's, guardian's or custodian's
personal use, advantage or wrongful profit or to the advantage or
wrongful profit of another, he or she is guilty of a felony and,
upon conviction thereof, shall be fined not more than $5,000 and
incarcerated in a state correctional facility not less than two nor
more than ten years.
(e) If any person,A caregiver, guardian or custodian of an
elder person or incapacitated adult who, by means of deception,
intimidation, coercion, infliction of bodily injury or threats of
the infliction of bodily injury, willfully misappropriates or
misuses the funds or assets of an incapacitated adult or elder
person for the person's, caregiver's, guardian's or custodian's
personal use, advantage or wrongful profit or to the advantage or
wrongful profit of another, he or she is guilty of a felony and,
upon conviction thereof, shall be fined not more than $5,000 and
incarcerated in a state correctional facility not less than five
nor more than fifteen years.
(f) Nothing in this article shallThis article may not be
construed to mean an adult is abused or neglected for the sole
reason that his or her independent decision is to rely upon
treatment by spiritual means in accordance with the tenets and
practices of a recognized church or religious denomination or
organization in lieu of medical treatment.§61-2-29a. Murder of an incapacitated adult or elderly person by
a caregiver, guardian or custodian.
(a) A caregiver, guardian or custodian of an incapacitated
adult or elder person who maliciously and intentionally causes the
death of an incapacitated adult or elder person under his or her
care, custody or control by his or her failure or refusal to supply
the incapacitated adult or elder person with necessary food,
clothing, shelter or medical care, is guilty of murder in the first
degree.
(b) A caregiver, guardian or custodian of an incapacitated
adult or elder person who causes the death of an incapacitated
adult or elder person under his or her care, custody or control by
knowingly allowing any other person to maliciously and
intentionally fail or refuse to supply the incapacitated adult or
elder person with necessary food, clothing, shelter or medical
care, is guilty, like the other person, of murder in the first
degree.
(c) The penalty for offenses defined in this section shall be
that which is prescribed for murder in the first degree under the
provisions of section two, article two of this chapter.
(d) The provisions of this section do not apply to any
caregiver, guardian or custodian who fails or refuses, or allows
another person to fail or refuse, to supply an incapacitated adult
or elder person with necessary medical care, when the medical care conflicts with the tenets and practices of a recognized religious
denomination or order of which the incapacitated adult or elder
person is an adherent member.

§61-2-29b. Death of an incapacitated adult or elder person by
abuse by a caregiver, guardian, or custodian.

(a) A caregiver, guardian or custodian of an incapacitated
adult or elder person who maliciously and intentionally inflicts
upon an incapacitated adult or elder person under his or her care,
custody or control substantial physical pain, illness or any
impairment of physical condition by any means other than
accidental, thereby causing the death of the incapacitated adult or
elder person, is guilty of murder in the second degree.
(b) A caregiver, guardian or custodian who knowingly allows
any other person to maliciously and intentionally inflict upon an
incapacitated adult or elder person under the care, custody or
control of the caregiver, guardian or custodian substantial
physical pain, illness or any impairment of physical condition by
other than accidental means, which thereby causes the death of the
incapacitated adult or elder person, is guilty, like the other
person, of murder in the second degree.
(c) A person convicted of a felony described in subsection (a)
or (b) of this section shall be punished by a definite term of
imprisonment in a state correctional facility which is not less
than ten nor more than forty years. A person imprisoned pursuant to the provisions of this section is not eligible for parole prior
to having served a minimum of ten years of his or her sentence or
the minimum period required by the provisions of section thirteen,
article twelve, chapter sixty-two of this code, whichever is
greater.
(d) The provisions of this section do not apply to any
caregiver, guardian or custodian or other person who, without
malice fails or refuses, or allows another person to, without
malice, fail or refuse, to supply an incapacitated adult or elder
person with necessary medical care, when the medical care conflicts
with the tenets and practices of a recognized religious
denomination or order of which the incapacitated adult or elder
person is an adherent member. The provisions of this section do
not apply to any health care provider who fails or refuses, or
allows another person to fail or refuse, to supply an incapacitated
adult or elder person with necessary medical care when the medical
care conflicts with the tenets and practices of a recognized
religious denomination or order of which the incapacitated adult or
elder person is an adherent member or where the failure or refusal
is pursuant to a properly executed do-not-resuscitate form.

§61-2-29c. Neglect of an incapacitated adult or elder person
resulting in death.

(a) A caregiver, guardian or custodian who neglects an
incapacitated adult or elder person under his or her care, custody or control and by that neglect causes the death of the
incapacitated adult or elder person, is guilty of a felony and,
upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than three nor more than fifteen
years and fined not less than $1,000.
(b) An incapacitated adult or elder person who, in lieu of
medical treatment, has agreed to treatment, either personally or by
medical power of attorney, solely by spiritual means through prayer
in accordance with a recognized method of religious healing with a
reasonable proven record of success, for that reason alone, may not
be considered to have been neglected within the provisions of this
section. A method of religious healing shall be presumed to be a
recognized method of religious healing if fees and expenses
incurred in connection with the treatment are permitted to be
deducted from taxable income as "medical expenses" pursuant to
regulations or rules promulgated by the United States Internal
Revenue Service.
(c) An incapacitated adult or elder person whose caregiver,
guardian or custodian has inhibited or interfered with the
provision of medical treatment in accordance with a court order may
be considered to have been neglected for the purposes of this
section.§61-2-29d. Sexual abuse by a caregiver, guardian or custodian.
A caregiver, guardian or custodian of an incapacitated adult or elder person who knowingly procures another person to engage in
or attempt to engage in the sexual exploitation of, or in sexual
intercourse, sexual intrusion or sexual contact with an
incapacitated adult or elder person under the care, custody or
control of the caregiver, guardian or custodian, or who knowingly
allows another person to engage in the sexual exploitation of, or
in sexual intercourse, sexual intrusion or sexual contact with an
incapacitated adult or elder person under their care, custody or
control, despite the fact that the incapacitated adult or elder
person may have suffered no apparent physical injury or mental or
emotional injury as a result of the conduct, is guilty of a felony
and, upon conviction thereof, shall be imprisoned in a state
correctional facility not less than five years nor more than
fifteen years.

NOTE: The purpose of this bill is to protect incapacitated
persons and the elderly who, reliant upon the care of others, are
extremely vulnerable members of our society from abuse and neglect
by caregivers, guardians or custodians, by more clearly defining
the offense of abuse or neglect of incapacitated adults or elder
persons which result in the death of such persons, to include the
offense of murder.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.